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Boy or Girl? Sex, Law and Certainty: The Intersex Problem

21 November 2016
By Ed Horowicz
PhD student, University of Manchester, and Lecturer at Edge Hill University
Appeared in BioNews 878

Sex is one of the first identifying genetic characteristics that a new baby presents to parents and to society. The law in England, Wales and Northern Ireland requires that all births be registered within 42 days, under the Births and Deaths Registration Act 1953. Although not explicit in the Act, part of the information required is that the child's sex is identified on the birth certificate as either male or female.  I argue that the medical and legal requirement to conform to binary biological genetic sex results in the immediate violation of the physical integrity of the intersex child, leading to potentially devastating personal consequences. Significantly, this violation is symptomatic of both a medical system intent on 'fixing' abnormality and a legal system dependent on certainty of binary sex.

First, there is the medical problem. When the sex of a baby is difficult to distinguish, often through having ambiguous genitalia, there follows a complex and invasive medical and genetic diagnostic journey. Intersex is a general term used for a variety of conditions in which a person is born with a sexual or reproductive anatomy that does not fit the typical physical definitions of female or male. Medical practice uses the term 'management of Disorders of Sex Development (DSD)' to encompass congenital conditions in which the development of chromosomal, anatomical or gonadal sex is atypical. Medical science has evolved and interventions are carried out to physically 'correct' and 'align' an intersex child's sex to that which is genetically diagnosed and then legally recognised. The perceived benefit is that medicine can identify biological determinants of sex, align the child to a binary sex through intervention and therefore shape masculine and feminine gender identity as the child develops. What is apparent is that rather than consider intersex as another sex and allow time for a child to determine their identity as an individual, the goal of medicine is to immediately diagnose and manage a perceived genetic and physical abnormality to conform to the legally required male or female identity.

Then there is the legal problem. The consideration of intersex as a legal issue is a relatively recent concern, as historically the social and cultural taboos surrounding intersex negated this. Central to this were the roles of religion and heterosexual normative values in society influencing law. The evolution of social attitudes and the distinguished concepts of sex and gender have led to the emergence of the intersex rights movement, which calls for legal recognition of a third sex for all those on the spectrum of intersex. However, the legal position of male and female sex in law exists beyond simply that of a person's identity. In a historically paternalistic society and legal system, the law requires recognition of sex for the purpose of inheritance and the legitimate conception of children and marriage. This has resulted in intersex people facing legal uncertainty and being unrecognised in their natural state.

In contrast to English birth registration, German and Dutch law provides that where a child's sex is not established, registration of birth can still be completed without registering the child's sex, which can be amended when it is established later in the child's life. This approach is considered as being preferable to English law from the intersex rights movement perspective, as it allows the intersex person to decide whether they identify as male or female. For some though, the third sex still promotes a desire for certainty by categorisation and so supporting intersex as a legally recognised third sex negates the possibility for a more fluid approach to the evolution of a person's sex within society. The law has considered the ability of an adult to legally be recognised as another gender, under the Gender Recognition Act 2004. The problem with this solution is that this focuses on transgender people and does not differentiate intersex, as it remains focused on binary male or female sexes. The fixation on binary sex is further seen in equality law where the genetic and physical nature of intersex characteristics from birth cannot receive legal protection from discrimination under the Equality Act 2010, which also defines sex as either male or female. Therefore, parents of an intersex baby are placed in an impossible legal situation because the baby must conform to either male or female sex to be recognised by the law.

The symbiotic conclusion is that, until the law recognises that sex has always existed beyond the binary male and female chromosomal characteristics, medicine will continue to physically violate intersex children. The complicit nature of the relationship between law and medicine in establishing sex is mutually satisfying and focuses on the need for an outdated and morally repugnant desire for normality and certainty. Intersex children are no less worthy of being considered legal persons, and the starting point is to move away from a binary approach to sex recognition in birth registration.

Accommodating Intersexuality in European Anti-Discrimination Law
European Law Journal |  24 November 2014
Ethical and legal aspects of management for disorders of sex development
Journal of Paediatrics and Child Health |  27 November 2011
Intersex Society of North America
Intersex Society of North America |  22 June 2021
Intersex UK
Intersex UK |  22 June 2021
Out of the Box? Domestic and Private International Law Aspects of Gender Registration'
European Journal of Law Reform |  1 June 2013
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